Thursday, July 14, 2005

Projecting the present onto the past?

Question: when the Talmud expounds the halakha of due process in court, can it be taken as evidence that this view prevailed in ancient Israel?

The Talmud often projects a rabbinic view on the past. Thus we find that Biblical figures are routinely portrayed as rabbinic scholars, not very unlike the rabbis themselves. On the other hand while the Talmud does this, even portraying the wicked Menasshe Ha-melekh as a formidable talmid chokhom, it also does not shy from the topic of Jewish sectarianism and the times in which various non-Pharisaic groups held power. However this pertains mostly to the Second Temple period, that is not earlier than what might be called the proto-rabbinic period. The earliest Biblical times are seen as an idyllic golden age and as such only the correct views, that of the rabbis themselves, could have held sway. Anachronism or not, this is how it is viewed, although of course more than a few Pharisaic practices are ascribed to ordnances enacted by Ezra and his successors, which means that there is definitely a rabbinic awareness of where things are properly placed in history as well.

But regardless of the rabbis' own view of the past, the standard traditional view, the one taught and believed in many Orthdox circles today is that unless noted otherwise the Talmud describes Judaism as it occurred in all of the past and not merely in the rabbis' present. For example, take the case of ben sorer u-moreh, a stubborn and rebellious son, a burgeoning juvenile delinquent of unusual proportions. The Torah, worried perhaps about a real social problem in the making, prescribes a solution: the death penalty (Deut. 21). The Talmud, however, relates all kinds of special conditions. The ben sorer u-moreh is not merely a bad seed. He has to do X, Y and Z. And if one of the child's parents has certain disabilities then he won't be found to be a ben sorer u-moreh. And he has to be a certain age. And he has to have a certain amount of physical development. And on it goes until the Talmud concludes that the ben sorer u-moreh never did and never will happen. Why is it in the Torah then? Silly question: its Torah and worth studying for its own sake.

But there are two questions that can be asked. One, is it really true that the ben sorer u-moreh case never occurred in all of history? Two, if we conclude that it must have, are we overstepping bounds in seemingly challenging the Talmud's assertion to the contrary--something that I am loathe to do, especially as concerns areas of halakha?

The Talmud didn't appear one day in the 6th century. It was at least three and as much as five or six centuries in the making. But on the other hand, it wasn't really "in the making" until it was decided towards the end of the period that it would be compiled and completed. When the Talmud speaks of events or views that occurred, say, in the 3rd century it is actually being remembered and written in the 6th. And when it speaks of events or views of a thousand years earlier that is true as well. There is no doubt that the Talmudic sages had every reason to believe that what is, was. Certainly in cases without evidence to the contrary. They could confidently assert that the halakhos of ben sorer u-moreh as they expounded them were the very same halakhos a thousand years earlier. But the simple fact is that we lack any evidence about ben sorer u-moreh in any period. We have the verses in the Torah on the topic and then silence until the Mishna and Gemara. So while we have no evidence that it was carried out, we also have no evidence that it wasn't.

What of the Christian Testament accounts of the adulteress being stoned? We can be reasonably sure that she wasn't convicted al pi halakha. Was she tried in a 23-member court that capital cases require? Okay, maybe. But were there witnesses to her adultery who warned her beforehand and did she orally accept their warning--all in toch kedei dibbur, that is about three seconds after they said their warning? These are requirements for a death sentence according to the Talmud. Obviously the rules make it pretty hard to the point that the Talmud doesn't expect death penalties to really occur, at least not frequently.

Now before one dismissed a Christian Testament account it should be remembered that at least this story had to ring true to its original audience. No one, apparently, would have exhibited surprise that an adulteress was stoned to death. The case would have probably been a travesty of justice to the rabbis, to be sure; it was totally against halakha. Maybe it was even a mob. But the point is that the incident presumably occurred. Halakha didn't prevail in all times. And what of the fact that Jews don't convert gentiles at the point of a sword? Halakha certainly doesn't sanction that, but that is just what the Hasmonean king Yohannan Hyrcanus did to the Idumeans.

The fact that the Talmud informs us of the halakha really can't be taken as evidence for its practice in all times and places. Ayin the Godol Hador, and no, I don't agree with Blu Greenberg. IYH I'll post why.